On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution. Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month. The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.

I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief. I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap. If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.

In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:

Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.

Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically. But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:

The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”

Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination. “In light of these repeated legislative and ballot-box defeats,” the brief states,

it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women. Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.

The brief goes on to tackle the Ninth Circuit precedent standing in its way. In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny. But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”

The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:

The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers. The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”

Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled. Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.

Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation. But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom? Here, there is some equivocation. As Walker wrote:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test. Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension. That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws. But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.

As I wrote on the night of Judge Walker’s decision:

[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny. Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional. Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant. If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational. Hypothetical justifications are now inadmissible opinions unworthy of deference. And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall. Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades. Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.

In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously. After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense. The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America. Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity. Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.

Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s. I have doubts that his liberal colleagues will once again join him in ducking the standard of review. If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws. At worst, he will be committing unprincipled, political cowardice.

My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved. However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself. If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force. Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.